Cowichan decision raises questions around fee simple titles – MLT Aikins

September 17, 2025

In a precedent-setting decision with sweeping implications for landowners across British Columbia, the BC Supreme Court’s ruling in Cowichan Tribes v. Canada (Attorney General), 2025 BCSC 1490, raises important legal and practical questions about the nature and security of fee simple title – a term referring to ownership of full, permanent property rights– when it overlaps with Aboriginal title.

For landowners, public and private, this case sends a clear message: Fee simple title is not immune from constitutional scrutiny, and the existence of Aboriginal title can, in some circumstances, render that title invalid.

The legal landscape before Cowichan

Under BC’s Land Title Act and the Torrens system (BCs land title system that leverages an up-to-date record of land registry to determine ownership), registered owners of land in BC are typically granted indefeasible title, a title presumed to be conclusive and unchallengeable, even in the face of prior unregistered interests. However, the Canadian courts have long recognized that Aboriginal title is not created by statute but instead arises from the historic occupation of land by Indigenous peoples and is protected under s. 35(1) of the Constitution Act, 1982.

Read More: https://www.mltaikins.com/insights/cowichan-decision-raises-questions-around-fee-simple-titles/